Exhibit 10.3


 


FIBERTOWER
CORPORATION


 


WAIVER
OF


ACCELERATION
OF BENEFITS UPON CHANGE OF CONTROL


 


This Waiver of Acceleration of Benefits Upon Change of
Control (this “Waiver”), is entered into between FiberTower Corporation, a
Delaware corporation (the “Company”) and Ravi Potharlanka (the “Executive”) and
is effective as of the date of the last signature hereof.


 


RECITALS


 


WHEREAS, a change of control of the Company may occur as a
result of the mandatory redemption of the Company’s 9.00% Mandatorily Redeemable
Convertible Senior Secured Notes due 2012 (the “Change of Control”);


 


WHEREAS, the Executive and the Company have entered into the
following agreements that provide the following benefits that would accelerate
upon a change of control:


 


1.  Pursuant to
that certain Special Retention Compensation Package dated February 11,
2008 between the Company and the Executive (the “Special Retention Compensation
Package”), the Company has agreed to pay the Executive a cash retention bonus
of $666,667 on January 1, 2010 and an additional cash retention bonus of
$333,333 on January 1, 2011 if the Executive continues to remain employed
on such dates.  In addition, the Company
agreed to grant to the Executive 250,000 shares of restricted stock and
pursuant to that certain Restricted Stock Agreement, on February 11, 2008
the Company granted to the Executive 250,000 shares of restricted stock with
166,667 of the granted shares vesting on January 1, 2010 and the remaining
83,333 shares vesting on January 1, 2011. 
If a change of control (as defined in the Special Retention Compensation
Package and the Restricted Stock Agreement) occurs on or before January 1,
2011, then any cash amounts not yet vested and paid under the Special Retention
Compensation Package will become immediately vested, due and payable and any
unvested shares of restricted stock shall become fully vested.


 


2.  Pursuant to
that certain Restricted Stock Agreement, on February 11, 2008 the Company
granted to the Executive 250,000 shares of restricted stock with vesting on
each anniversary of December 15, 2007 at 25% in 2008, 2009, 2010, and 2011.  In the event of a change of control (as
defined therein), then any unvested shares of restricted stock shall become
fully vested.


 


3.  Pursuant to that certain
Incentive Stock Option, on March 17, 2009 the Company granted to the
Executive an incentive stock option to purchase 250,000 shares of common stock
of the Company with 25% of the shares which are subject to the option vesting
and becoming exercisable on the first anniversary date of the grant and 2.08%
of the shares which are subject to the option vesting and becoming exercisable
monthly for the next 36 months.  In the
event of a change of control (as defined therein), then immediately prior to
the consummation of such change of control, any of the shares which are subject
to the option that have not yet become vested and exercisable will vest and
become exercisable on a basis that gives the Executive an 


 


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opportunity, as
determined by the Company’s board of directors, to participate as a stockholder
in the change of control transaction following exercise.


 


4.  Pursuant to
that certain Restricted Stock Agreement, on August 29, 2006 the Company
granted to the Executive 150,000 shares of restricted stock with vesting on the
anniversary of the grant date in equal 1/3rd increments respectively in 2008, 2009 and
2010.  In the event of a change of
control (as defined therein), then immediately prior to the consummation of such
change of control, any unvested shares of restricted stock shall become fully
vested.


 


5.  Pursuant to that certain
Incentive Stock Option, on August 29, 2006 the Company granted to the
Executive an incentive stock option to purchase 150,000 shares of common stock
of the Company which shall vest and become exercisable at the rate of 1/30th per month
beginning July 2008.  In the event
of a change of control (as defined therein), then immediately prior to the
consummation of such change of control, any of the shares which are subject to
the option that have not yet become vested and exercisable will vest and become
exercisable on a basis that gives the Executive an opportunity, as determined
by the Company’s board of directors, to participate as a stockholder in the
change of control transaction following exercise.


 


WHEREAS, the Executive desires to voluntarily relinquish,
waive, forfeit and disclaim, the acceleration of certain of the above described
benefits that would otherwise occur upon the Change of Control.


 


NOW THEREFORE, in consideration of the mutual terms, conditions,
and covenants set forth herein, and the ongoing employment relationship and
compensation to be paid and received in connection therewith, the Company and
Executive agree as follows:


 


1.                                       Waiver of Acceleration of Benefits Upon
Change of Control.  The Executive hereby unconditionally and
voluntarily and irrevocably relinquishes, waives forfeits and disclaims the
acceleration of the following benefits that would otherwise result from the Change
of Control:


 


(i)                                     Acceleration of vesting and payment of
the cash retention bonus that would occur by reason of the Change of Control of
any amounts that would otherwise vest and become payable pursuant to the terms
of the Special Retention Compensation Package after December 31, 2010.


 


(ii)                                  Acceleration of exercisability that would
occur by reason of the Change of Control of the incentive stock options granted
on August 29, 2006 and March 17, 2009 that have not otherwise become
vested and exercisable as of the Change of Control; provided, however, that
with respect to any incentive stock option the exercise price of which is less
than the Fair Market Value (as defined in the FiberTower Corporation Stock
Incentive Plan) of the common stock of the Company on the effective date of
this Waiver, the acceleration of exercisability of these options is waived only
if the Change of Control occurs after December 31, 2009.


 


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(iii)                               Acceleration of vesting that would occur
by reason of the Change of Control of any shares of restricted stock which were
granted on February 11, 2008 (pursuant to the Special Retention
Compensation Package), August 29, 2006, and February 11, 2008 that
would otherwise vest after December 31, 2010.


 


2.                                       Except as otherwise provided herein, all
other terms and provisions of the agreements described above will remain in
full force and effect.


 


The parties have executed this Waiver effective as of the date of the
last signature hereof.


 


	
  FIBERTOWER
  CORPORATION

  	
   

  	
  EXECUTIVE:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ John P.
  Kelly

  	
   

  	
  By:

  	
  /s/ Ravi
  Potharlanka

  
	
  Printed Name:

  	
  John P. Kelly

  	
   

  	
  Printed Name:

  	
  Ravi Potharlanka

  
	
  Title:

  	
  Chairman-Compensation
  Committee-

  	
   

  	
  Title:

  	
  Chief Operating
  Officer

  
	
   

  	
  FiberTower
  Corporation

  	
   

  	
  Date:

  	
  December 11,
  2009

  
	
  Date:

  	
  December 16,
  2009

  	
   

  	
   

  	
   

  
							



 


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